‘So what?’ How arrogance sank the Alaska Redistricting Board’s Republicans

And they almost got away with it, too, if it weren’t for that pesky public.

Happy Friday, Alaska!

In this edition: It’s been a pretty wild week and while the urge to spend all Friday afternoon and, likely, part of Saturday attempting to catch up on everything is pretty strong, I had a good discussion with an attorney friend that has been following the Alaska Redistricting trial and I wanted to zero in on a key point raised there: Namely, that the Alaska Redistricting Board’s Republican majority could have very well accomplished everything they had set out to accomplish if they had been willing to do the work—after all, the board has broad latitude in what it can do—but it was their self-certain arrogance of just what that latitude permits that ultimately sank them. Also, an issue on timing on the lawsuit, the reading list and weekend watching.

‘So what?’ How arrogance sank the Alaska Redistricting Board’s Republicans

Alaska Redistricting Board members Bethany Marcum, Budd Simpson and John Binkley (chair) moments before they would approve a plan for Senate pairings that boosts Eagle River's representation at the cost of minority communities during the Nov. 9, 2021 meeting.

As the battle over the Alaska Redistricting Board’s work moves onto the Alaska Supreme Court (well, more on that below), it’s important to understand how close the board’s Republican majority was to getting precisely what it wanted: An increase to Eagle River’s sway in the Legislature and a little sprinkling of Juneau’s relatively conservative Mendenhall Valley across two House districts.

They almost got away with it, too, if it weren’t for that pesky public.

Judge Thomas Matthews said as much in his ruling, finding the board’s maps met the constitutional requirements for legislative districts—they’re contiguous enough, compact enough, socioeconomically integrated enough and with minimal enough deviation from the ideal population—even in the two areas he struck down. He found the contiguity requirement was satisfied in the board’s decision to link Eagle River and East Anchorage together in a single House district, rejecting the notion that people should be able to travel throughout their district without leaving its boundaries. And with the Skagway case, he ruled its socioeconomic connections were satisfied because Juneau is Juneau and the law makes no differentiation between its downtown and the Mendenhall Valley.

The board has broad latitude in how it interprets and applies these requirements, he recognized, but it’s not without limits.

The Republican majority on the Alaska Redistrict Board fully recognized this, too, and put it work in achieving their maps. They could do whatever they wanted, they argued and board counsel Matt Singer reinforced, as long as the final product fit within the Alaska Constitution’s four requirements. To them, there were few—if any—limits placed on them. In the end, it gave way to an openly arrogant approach to the process where Republicans hardly disguised their partisan designs where, as Judge Matthews wrote, they “believed they knew better than the people.”

It was this arrogance, put on full display in the final tense days of the redistricting board’s work and then during the trial, that ultimately sank the Alaska Redistricting Board’s Republicans.

Had the board merely attempted to integrate the weight of public testimony that soundly opposed the board’s actions—as they had done with Valdez—before dismissing it as an impossible task, they would have gotten away with it. But instead, they frequently found themselves saying the quiet parts out loud.

Board member Bethany Marcum quite literally said her plan would give the conservative Eagle River “more representation” in the Legislature. At the trial, Board member Budd Simpson scoffed at the mere suggestion he should’ve listened to the weight of public testimony, arguing that his opinion about the compactness of the current maps ruled supreme. The ruling thinking from the get-go was that they could do whatever they wanted if it satisfied those four requirements. It was typified in the Singer’s closing arguments before the court on the Skagway case.

“So what?” he said several times, lining up concerns like the mountain of public opposition to the plan and other points only to knock them down with a “So what?”

Judge Matthews answered by striking down the East Anchorage Senate pairings and the Skagway/Juneau map, finding the Alaska Redistricting Board had failed to uphold the trust of the public, failed to act fairly and failed properly weigh public testimony that the board is required to listen and collect as part of its constitutional duties.

“Member Simpson’s myopic focus on the single criteria of compactness (doesn’t) constitute reasonable explanations for ignoring public testimony. The board had multiple options available that would have satisfied both Skagway’s and Juneau’s reasonable requests, and Skagway has shown at trial that those requests can still be accommodated without affecting the boundaries of any other districts. More than anything, the board’s closing argument does little to instill confidence. To each of Skagway’s points, the board replied: ‘So what?’ This is not the response the people should expect to receive from the public entity in charge of redistricting and constitutionally required to hold public hearings. Nor is this response indicative of a rational decision-making process. Skagway’s unsuccessful trial arguments aside, the board is nonetheless obligated to make a good-faith attempt to incorporate the public testimony of Alaska citizens. It simply did not.”

Revisiting Judge Matthews’ order with a bit more sleep and some time to discuss the ruling has been enlightening. It is a remarkable piece of work that sets a clear and well-reasoned standard for why the board—a public entity entrusted to overseeing the establishment of the state’s voting districts in an ostensibly fair and even-handed manner—should be held accountable. In it, Judge Matthews has looked at the board’s arrogance, their belief that they are somehow above accountability to the public, and delivered a stinging rebuke that will, frankly, make the process that much fairer for the future. And this standard of heightened importance for public testimony isn’t just for public testimony’s sake but a path to establish fair maps.

“In this court’s view the board is required to seek a balance among constitutional criteria rather than assigning any one factor predominate weight. The board must resolve redistricting conflicts by determining what is the ‘fairest’ resolution for the people. The board is ‘not given wide discretion’ and its decisions must be informed by ‘public opinion.’ Rather than drawing districts based on individual prerogatives, the board must make a good-faith effort to harmonize both ‘The greater good of the state’ and the desires of each community ‘to the greatest extent possible.’”

And he said it’s improper for the board to elevate its own personal opinions above the clear input of the public. That Member Simpson conceded that he was appointed because he’s one of the few Republicans in Southeast Alaska was not lost on Judge Matthews nor was his dismissal of public testimony, which would effectively render any and all public input moot.

“Redistricting is not a science and the board appointees are not experts. The board consists of five (supposedly non-partisan) appointees from different judicial districts with only a one-year residency requirement. Where the whole purpose of the board is to elicit and incorporate public comment into the final plan, the policy rationale for limiting the types of comments to which the board must respond effectively crumbles,” he said. “If the board could hold public hearings but with no intent to ever listen to or incorporate public comments in the first place, then what purpose would those public hearings serve?”

And while the board’s Republicans have been dismissive about the ruling, voting to appeal the decision as if greater weight to public input is a great travesty to the process, Judge Matthews has been clear that the consideration of public testimony is critical to ensuring that the maps are fair and, most importantly, free as possible of partisan influence.

“The specter of a ‘partisan gerrymander’ always looms in the background where Board Members appointed by the political branches make decisions contrary to the will of the people or fail to offer adequate explanation. Instead, whether the clear weight of public comment factors favors one concept over another is an objective standard that can easily be measured. By requiring the board to either accommodate the clear weight of public opinion or explain why it cannot, the danger of hidden partisan agendas is removed.”

It should be crystal clear that the Eagle River/East Anchorage Senate district and what happened in Southeast Alaska could very well stand today if not for the board’s own words. Had they taken seriously their role to hear public testimony and input on the plans and at least attempted to accommodate those concerns—as Marcum did with Valdez—then the plan would be still standing.

And that’s the rub.

Where the board made a conscious effort to accommodate the enmity between Valdez and Mat-Su that resulted with them concluding there was no reasonable alternative, the board made no such attempt with East Anchorage or with Skagway/Juneau. That’s because accommodating the weight of the public testimony in both cases—something Judge Matthews found was totally feasible—would’ve resulted in maps that ran contrary to the goals of the board.

The board made no good-faith effort to accommodate those concerns because there was never a good reason for ignoring those concerns in the first place and, in their haste and self-certain arrogance, didn’t even pretend otherwise. And you could see just how much they bristled at every time that board members Nicole Borromeo and Melanie Bahnke at every turn, calling out their naked partisanship with comments like Bahnke’s “This is why I said the emperor has no clothes.”

When it comes to public service, you should always be ready and able to defend and explain your actions to the public. It’s a matter of accountability and certainty that the public process is fair and equitable. And if there isn’t a good reason, then you shouldn’t be doing whatever it was that you’re doing. The board had its goals in mind—the goals of expanding Republican representation in the Legislature—and it pushed ahead, confident in the belief not just they knew better than the public but that they didn’t even have to hear the public.

Judge Matthews’ ruling is a clear reminder that the board’s purpose is to serve the public. Not themselves.

A bit of inside baseball

On Wednesday, the Alaska Redistricting Board, the Mat-Su Borough, Valdez and Skagway filed appeals to the Alaska Supreme Court. Among the records that have been posted to the Appellate Court website, are orders by the Supreme Court that converted the appeals to what are called petitions to review. It was all about 30,000 feet above my layman’s head but thanks to the help of some very patient attorneys, it’s potentially a big deal.

That’s because the Supreme Court is automatically required to consider appeals while it can reject petitions for review. The reason this happened is because Judge Matthews’ order wasn’t technically a final order (though it looked like it), remanding the case back to the Alaska Redistricting Board to redraw. He didn’t wrap up the case with the “FINAL ORDER” bow, which means everyone would have to wait until the board fixes the errors identified by Judge Matthews to get their appeals in. That’s why we have petitions for review now, which are effectively an effort to get the Supreme Court to intervene in an ongoing case. If the Supreme Court rejects the petitions for review, the whole appeals process could be drawn out.

Redistricting Board attorney Matt Singer has already filed a motion for reconsideration, arguing that Judge Matthews’ order was essentially a final order for all intents and purposes and should be considered as so, allowing everyone to get their automatic appeals in. It could also create an odd situation where the results of their work could spawn new litigants and just create a thoroughly messy situation.

It appears that the Supreme Court at least open to hearing Singer’s arguments, as it’s put its original conversions on hold in order for the full board to consider this issue.

It’s not totally clear what the timeline moving forward will be, but I’ll keep you posted.

Reading list

• Ballot Measure 2 contains a pretty significant overhaul for how dark money is handled in state elections that will go into effect soon, which is why critics say a bunch of Republican money just arrived in state. From the Anchorage Daily News: National Republican group sidesteps new disclosure law with $3 million donation in Alaska governor’s race

• Another year later and the Dunleavy administration’s rushed attempt to split the Department of Health and Social Services in two is still riddled with errors and serious legal issues. Read more: ADN/KTUU

• The state continues to say it’s totally cool that the state picked up the nearly half-million-dollar settlement over the loyalty pledge firings despite a judge finding that Gov. Dunleavy and former chief of staff Tuckerman Babcock. Whether the Legislature thinks it’s totally cool and puts forward the money, though, has yet to be seen. From KTUU: Gov. Dunleavy, ACLU of Alaska defend state paying $495,000 settlement to sacked psychiatrists

Weekend watching

With everything so deeply mired in legal process and government pedantry, I really enjoyed this deep dive into the U.S. government’s brief flirtation with hip design.

Have a nice weekend, y’all.